Mrs.Rekha Seth vs Vijay Kumar And Another on 29 January, 2009

Punjab-Haryana High Court
Mrs.Rekha Seth vs Vijay Kumar And Another on 29 January, 2009
CR No.488 of 2009                                        1


                                      CR No.488 of 2009
                                      Date of decision: 29.1.2009

Mrs.Rekha Seth                                     ......Petitioner

Vijay Kumar and another                            ......Respondent


                        * * *
Present:    Mr. Amit Jhanji, Advocate for the petitioner.

                         * * *

Rakesh Kumar Garg, J.

This is defendant’s revision petition challenging the orders

dated 4.5.2006 and 28.8.2008 passed by the Civil Judge(Junior Division),

Gurgaon and Additional District Judge, Gurgaon respectively whereby the

application under Order 39 Rule 1 and 2 read with Section 151 CPC filed

by respondent (plaintiff) for ad interim injunction has been allowed and she

has been restrained from further alienating the suit property during the

pendency of the suit.

As per the averments made in the civil suit by the plaintiff-

respondent, the defendant-petitioner agreed to sell property in dispute for a

sum of Rs.68,01,370/- vide agreement dated 28.9.2004 and received a

sum of Rs.4 lacs as advance of the sale consideration. The case set up

by the plaintiff-respondent is that it was agreed that before execution of the

sale deed, the petitioner would pay the outstanding amount to Citi Bank

within 20 days after the petitioner get the original documents and No

Objection Certificate from Citi Bank and intimate the petitioner. It was

further stated that the plaintiff-respondent was always willing and ready to

perform his part of the agreement and the petitioner never cleared the dues

nor obtained the NOC from the Bank, therefore, the plaintiff-respondent
CR No.488 of 2009 2

had earlier filed a suit for permanent injunction wherein the respondent had

sought relief against the petitioner from alienating the suit property to any

other person and during the pendency of said suit, the petitioner objected

to the maintainability of the suit and submitted that as per the alleged

agreement, the material date for execution and registration of the sale deed

was 28.9.2004. Since, the date had expired, the suit is not maintainable in

view of the provisions of Section 41(h) of Specific Relief Act. Other

objections with regard to jurisdiction etc. were also taken. The suit was

amended by the plaintiff converting the same into suit for possession by

way of specific performance of the agreement. Along with the suit, the

plaintiff-respondent also filed an application under Order 39 Rules 1 and 2

read with Section 151 CPC for grant of ad interim injunction restraining the

defendant-petitioner from alienating the suit land.

The Civil Judge, Gurgaon, vide his order dated 4.5.2006 held

that the plaintiff was entitled to the grant of ad interim injunction restraining

the petitioner from further alienating the property so that the aggrieved

vendee may not be involved in protracted litigation.

Appeal filed by the petitioner against the aforesaid order of the

trial Court was also dismissed.

Learned counsel for the petitioner has vehemently argued that

initially the plaintiff-respondent had filed suit for permanent injunction

restraining the defendant-petitioner from alienating the property to any

other person instead of filing suit for specific performance of agreement to

sell but subsequently, sought an amendment with regard to the suit. Thus,

the amendment sought by the respondent was an afterthought and

therefore, he has failed to show the prima facie case in his favour and

thus, the orders of the Courts below are liable to be set aside.

I have heard learned counsel for the petitioner. However, I find
CR No.488 of 2009 3

no merit in the arguments.

It is an admitted case of the parties that initially the plaintiff-

respondent filed suit for permanent injunction. The petitioner has taken

objection to the maintainability of the same and thereafter, the plaintiff-

respondent was allowed to amend his plaint and convert his suit from

permanent injunction to suit for specific performance of the agreement to

sell in question. Once that is so, the objection raised by the petitioner that

the suit is not maintainable, is baseless. The Courts below have granted

ad interim injunction restraining the petitioner from further alienation of the

suit property in favour of the plaintiff-respondent on appreciation of the

facts and circumstances of the case. I do not find any ground to interfere

with the discretion exercised by the Courts below in granting the ad interim

injunction in favour of the plaintiff.

No merit. Dismissed.

January 29, 2009                             (RAKESH KUMAR GARG)
ps                                                  JUDGE

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *